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Sunday, 15 October 2017

Procedure to be followed by court if party fails to take steps for long time

Ordinarily, no party will intend that the litigation must drag on in a Court. I do not think that appellant himself has any such intention to have his appeal kept pending on the file of this Court, without any progress. Therefore, I ascertained the reasons for the laches on the part of appellant, when learned counsel for appellant submitted that appellant "does not know the present address of the respondents and he is still in search of their addresses". It is needless to say that there are adequate provisions in law to take care of the situation. A party need not run in search of addresses of the opposite party for a long period of 8 years and, practically doing nothing for progress in this second appeal. Notices issued to the above respondents an returned with endorsement like "not known", "not in amsom", "not residing", "name not correct refused", transferred to "Kozhikode Bank" etc. It is not difficult for appellant to complete service of notice as per law.

7. On the facts and circumstances of the case, though it is fit and proper to order costs to each of the contesting respondents, I refrain myself from doing so, since I am not sun where exactly the shoe pinches and whether appellant alone is responsible for the laches.At any rate, this Court cannot indefinitely wait, until the party takes appropriate steps for the progress of the appeal. The Court is equally concerned about both sides of the proceedings and it is accountable to both sides. The matter was fought out by the parties in two forums already. The appellant must know that the long pendency of this appeal occurred not due to any fault from the part of this Court. In the peculiar facts and circumstances of this case, I am of view that appellant should be personally informed through the Registry of what transpired in this appeal. At any rate, to secure ends of justice, I am constrained to take this extreme step to dismiss this appeal by this detailed order after 8 long years of pendency, even without admitting the appeal.

1. This second appeal is filed as early as on 19/06/2003, about eight years back. It arises from a partition suit of the year 1994. The appeal was filed with certain defects and it was hence, returned for curing the defects and re-presenting the same. Thereafter, it was only after about one year, on 06/07/2004 that the appeal was moved for admission. Another bench of this Court issued "notice before admission". It is thus, evident that this Court thought it fit to hear all the parties, even before admission of this appeal. Though notice was ordered by this Court, in the 2004 itself, appellant again defaulted, and process was defective. Hence, notice could not be sent to respondents. The defect was not cured by appellant, even after expiry of about five long years. The appeal was posted on 29/05/2009, in the light of a letter dated 22/04/2009 sent by appellant to Hon'ble Chief Justice, seeking early posting, stating that he is a retired JPS officer, a senior citizen aged 80 years (now 82) etc. When the appeal was called on 29/05/2009, two weeks time was granted by this Court to cure defect. Years passed. After about two years, again on 20/06/2011, this appeal was posted before Court when it was noticed that service was not complete on respondents Nos. 5, 6, 17 to 22, 24 to 26.

2. This Court directed appellant to take steps immediately and the case was posed to the next week. On 03/06/2011 again, two weeks' further time was granted by this Court, to cure the defect. The appeal again came up on 24/06/2011. Again, two weeks further time was granted to cure the defect. Today, when this appeal is again posted, appellant's counsel submitted that a petition is filed for declaration of "service" on all the respondents who are not served. But, a reading of the affidavit and the petition reveals that the petition is not for declaring "service" of notice to respondents.

3. The petition was filed under Order I Rule 10(2) CPC and Section 151 of CPC to declare that notice to those respondents Nos. 5, 6, 17 to 22, 24 to 26 are 'unnecessary', in the interest of justice. But, absolutely no reason is stated in the affidavit to grant such a declaration. Order I Rule 10(2) of CPC provides that the Court may, at any stage of proceedings, upon application of either party order that name of any party is improperly joined be stuck off. The suit is one for partition and appellant has no case that respondents 5, 6, 17 to 22, 24 to 26 are improperly joined. Nothing is stated in the affidavit, why those respondents are unnecessary for adjudication of the issues involved in the case and why their names be struck off under Order I Rule 10(2).

4. To pass any order, there must be a reason, but nothing is disclosed from the affidavit why notice to certain respondents are 'unnecessary'. Even at this belated stage, a petition is filed under Order I Rule 10(2) CPC, which is per se not maintainable, without even stating any reason for invoking the said provision. In such circumstances, the petition can only be dismissed and I do so. Consequently, it follows that appellant has not taken any step to serve notice on the certain respondents referred above, in spite of lapse of eight years on filing this appeal. In fact, there was no request also for time to take steps for completing service.

5. For the past about 8 long years, the contesting respondents who entered appearance in this appeal stood fastened to the litigation, without any progress in the appeal or attaining any finality to the litigation. If any more adjournment is granted, this Court will be allowing appellant to take an unfair and undue advantage over the contesting respondents, by the use of rule of procedure which will result in abuse of process of Court. Indiscreet granting of adjournments by Court for taking steps to complete service of notice, unmindful of the injury and hardship that are likely to be caused to opposite party who entered appearance will amount to abuse of process of Court by the Court itself. The process of the Court is intended to be used and not abused. This short message must go to the litigant who does not act promptly, by taking steps to complete service of notice, within a reasonable time.

6. Ordinarily, no party will intend that the litigation must drag on in a Court. I do not think that appellant himself has any such intention to have his appeal kept pending on the file of this Court, without any progress. Therefore, I ascertained the reasons for the laches on the part of appellant, when learned counsel for appellant submitted that appellant "does not know the present address of the respondents and he is still in search of their addresses". It is needless to say that there are adequate provisions in law to take care of the situation. A party need not run in search of addresses of the opposite party for a long period of 8 years and, practically doing nothing for progress in this second appeal. Notices issued to the above respondents an returned with endorsement like "not known", "not in amsom", "not residing", "name not correct refused", transferred to "Kozhikode Bank" etc. It is not difficult for appellant to complete service of notice as per law.

7. On the facts and circumstances of the case, though it is fit and proper to order costs to each of the contesting respondents, I refrain myself from doing so, since I am not sun where exactly the shoe pinches and whether appellant alone is responsible for the laches. At any rate, this Court cannot indefinitely wait, until the party takes appropriate steps for the progress of the appeal. The Court is equally concerned about both sides of the proceedings and it is accountable to both sides. The matter was fought out by the parties in two forums already. The appellant must know that the long pendency of this appeal occurred not due to any fault from the part of this Court. In the peculiar facts and circumstances of this case, I am of view that appellant should be personally informed through the Registry of what transpired in this appeal. At any rate, to secure ends of justice, I am constrained to take this extreme step to dismiss this appeal by this detailed order after 8 long years of pendency, even without admitting the appeal. In the result the following order is passed: